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In Case About Google's Secrets, Yours Are Safe

The Justice Department went to court last week to try to force Google, by far the world's largest Internet search engine, to turn over an entire week's worth of searches. The move, which Google is fighting, has alarmed its users, enraged privacy advocates, changed some people's Internet search habits and set off a debate about how much privacy one can expect on the Web.

But the case itself, according to people involved in it and scholars who are following it, has almost nothing to do with privacy. It will turn, instead, on serious but relatively routine questions about trade secrets and civil procedure.

The privacy debate prompted by the case may thus be an instance of the right answer to the wrong question. As recently demonstrated by disclosures of surveillance by the National Security Agency and secret inquiries under the USA Patriot Act, the government is aggressively collecting information to combat terror. And even in ordinary criminal prosecutions and in civil lawsuits, Internet companies including Google routinely turn over authentically private information in response to focused warrants and subpoenas from prosecutors and litigants.

But "this particular subpoena does not raise serious privacy issues," said Timothy Wu, a law professor at Columbia. "These records are completely disconnected. They're just strings of words."

In its only extended discussion of its reasons for fighting the subpoena, a Google lawyer told the Justice Department in October that complying would be bad for business. "Google objects," the lawyer, Ashok Ramani, wrote, "because to comply with the request could endanger its crown-jewel trade secrets."

Mr. Ramani's five-page letter mentioned privacy only once, at the bottom of the fourth page, and then primarily in the context of perception rather than reality.

"Google's acceding to the request would suggest that it is willing to reveal information about those who use its services," he wrote. "This is not a perception that Google can accept."

Even Google's allies are shying away from legal arguments based on privacy. The American Civil Liberties Union, for instance, said it planned to file papers supporting Google. But not on privacy grounds. "We will probably not be making that argument," said Aden J. Fine, a lawyer with the civil liberties union.

The issues raised by the new subpoena, while substantial, are fairly technical, according to Professor Wu. "The legal point here is what is the relevancy standard for subpoenas?" he said. "That is interesting to procedure scholars but to no one else."

Other Internet search engine companies, including Yahoo, America Online and MSN, have complied with the same Justice Department subpoena, which also sought a random sample of a million Web addresses. The companies all said there were no privacy issues involved.

A Justice Department spokesman, Brian Roehrkasse, agreed. "We specifically stated in our requests," he said, "that we did not want the names, or any other information, regarding the users of Google."

None of this is to say that subpoenas for search records linked to individuals are inconceivable. Google maintains information that could be used that way, and a subpoena could ask for it. But the recent subpoena does not.

The problem with the subpoena, Mr. Fine said, is more general. "This is another instance of government overreaching," he said.

The government says it needs Google's information to defend a challenge from the civil liberties union to a 1998 law, the Child Online Protection Act, which makes it a crime to make "material that is harmful to minors" commercially available on the Web. The law was enjoined by a federal court in Philadelphia before it became effective, and it has never been enforced.

In 2004, the United States Supreme Court affirmed the injunction, ruling that filtering devices may work as well or better than criminal prosecutions in achieving the law's aims of keeping some offensive materials away from children, and it sent the case back for a trial to explore that question.

At a trial scheduled to start in October, the government will try to prove that filters are ineffective. Philip B. Stark, an expert retained by the government and a statistics professor at the University of California, Berkeley, said in a court filing that the Web addresses and search terms sought from Google and other Internet companies would help him "to measure the effectiveness of content filters."

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The government apparently wants to show that real-world searches will pull up offensive materials that filters will not catch. Why it needs Google to do that is unclear, and Professor Stark declined a request for an interview, citing the pending litigation.

Google has not yet filed a response in court, and it has not discussed the case publicly beyond a brief statement citing government overreaching. Its fullest explanation of its position was in Mr. Ramani's letter in October.

Google objected, Mr. Ramani said, because the fit between what the government seeks and what it seeks to prove is poor. He also said that collecting and providing the information was burdensome and that the government could find it elsewhere.

Mr. Ramani did say that "one could envision scenarios" where Internet searches alone could reveal private information, but he provided no examples. But Google's main argument was that its "highly proprietary" trade secrets could be jeopardized.

Marc Rotenberg, the executive director of the Electronic Privacy Information Center, a civil liberties group that has frequently been critical of Google, said the trade-secrets argument was a serious one.

In other contexts, Google and other Internet companies say they are serious about protecting privacy. But their privacy policies acknowledge that they will comply with valid requests from the government and private litigants. Google's policy, for instance, says it may share users' personal information if it has "a good faith belief" that disclosure "is reasonably necessary to satisfy any applicable law, regulation, legal process or enforceable government request." Nicole Wong, Google's associate general counsel, said in an interview that the company "complies with valid legal process."

According to a 2004 decision of a federal court in Virginia, America Online alone responds to about 1,000 criminal warrants each month. AOL, Google and other Internet companies also receive subpoenas in divorce, libel, fraud and other types of civil cases. With limited exceptions, they are required by law to comply.

Ms. Wong said Google tried to notify users so they could object in court before the company turned over information about them. But the law forbids such notification in some criminal cases.

Even notification can be small comfort. It means a user must quickly and often at considerable expense find a lawyer and try to persuade a court to quash the subpoena. But the law often offers very limited protection for personal information held by third parties.

That approach no longer makes sense, said Daniel J. Solove, a law professor at George Washington University. "In the information age," he said, "so much of our information is in the hands of third parties."

Mr. Rotenberg said Internet search records, if collected and linked to individuals, could give rise to a particularly profound invasion of privacy. "It's kind of the shadow of the thoughts within your head -- your interests, your desires, your hobbies, your fears," he said.

The situation is more complicated outside the United States. Internet companies have complied with local laws, as they must to do business abroad. Yahoo, for instance, provided information that helped China send a journalist there to prison for 10 years on charges of leaking state secrets to a foreign Web site.

Still, the current subpoena to Google, legal experts said, has given rise to an important debate, whether the facts of the case are apt or not.

"It allows us to have a national dialogue about whether current privacy protections are adequate," said Susan P. Crawford, a specialist in Internet law at the Cardozo Law School. Even if the Justice Department is not seeking private information now, she said, "the next subpoena could ask for that kind of data."